ICC Judges reject Bensouda’s indefinite adjournment in case against Uhuru

ICC Chief Prosecutor Fatou Bensouda suffered a setback after Trial Chamber V (b) ruled that she had not convinced it that President Kenyatta was interfering with case. [PHOTO: FILE/STANDARD]

THE HAGUE: The criminal case against President Uhuru Kenyatta at the International Criminal Court (ICC) could be terminated in a week’s time.

In what was a breath-taking ruling for the President, Trial Chamber V (b) Wednesday rejected an application by the Office of the Prosecution (OTP) to adjourn the case indefinitely awaiting full co-operation of the Kenya Government.

And throughout their ruling, the three Trial Judges Kuniko Ozaki, Robert Fremr and Geoffrey Henderson left clear traces of their opinion that the case should be terminated forthwith, with an option to re-institute the charges in future if more evidence becomes available.

The judges gave the OTP only one logical option to withdraw the charges, a move that could change the course of Uhuru’s administration.

The Chamber gave Chief Prosecutor Fatou Bensouda one week to state whether she was ready to withdraw the charges or whether she had gathered more credible evidence to proceed with trial.

The prosecution was directed to file the notice by Wednesday next week indicating either they were withdrawing the charges or the evidence had improved to justify proceeding to trial.

But the court also rejected an application by Uhuru to terminate the case, saying there is no provision in the Rome Statute that expressly allows for that.

The chamber, however, has the discretion to suspend the trial indefinitely, which would be equivalent to terminating it.

The judges were ruling on arguments presented by the prosecution and the defence during a status conference in October. The prosecution had asked for adjournments until such a time when the Government of Kenya would comply with its request to produce Uhuru’s financial statements, and other personal records of his properties which it considers vital for the trial to proceed.

The Prosecution had also asked the court to refer the matter to the State Parties for action to be taken against the Government.

 REASONABLE DOUBT

The OTP argued that the Government had refused to co-operate because of Uhuru’s status as Head of State, but the judges rejected that argument, saying no evidence had been adduced to prove it.

“To the extent that this submission is directed towards alleging that there has been deliberate interference by Mr Kenyatta, the Chamber notes that no substantiation for such an allegation has been provided. Indeed the Prosecution has conceded that it has no evidence to support such an allegation,” they ruled.

The Chamber declined to set new trial dates, saying: “It would be contrary to the interest of justice for the prosecution to proceed to trial in circumstances where it believes it will not be in a position to present evidence sufficient to prove the guilt of the accused beyond reasonable doubt.”

“The Chamber notes that in practical terms and in the circumstances of this case, its decision to deny the further adjournment request is likely to have the consequences of ending the proceedings,” the judges said, noting that the prosecution had already admitted that they had no sufficient evidence.

In the light of such admission, the Chamber was of the view that the appropriate course of action would now be to prompt withdrawal of the charges.

But they pointed out that the defence had established the justification for it to intervene and terminate the case.

The chamber noted that the denial of further adjournment did not bar the Prosecution from filing fresh charges against Uhuru at a later date on the same facts should it obtain sufficient evidence.

The judges empathised with the victims of the post election violence, who have been waiting for justice for crimes committed against them.

“While the victims’ legitimate interest includes seeing those responsible for the crimes held accountable, the Chamber does not consider that in the light of the presumption of innocence it would be in the interest of justice or the interest of the victims for the current proceedings to be continued on the speculative basis,” the judges ruled.